Employment contract advise needed!

Dear All,

Please give me an advise about the content of my employment contract. I see some possible loopholes but maybe I am wrong.

First item,
“The Employee shall faithfully and to the best of his or her ability and to devote full time attention and efforts to perform his or her duties. Unless with prior written consent from the Employer, [color=#FF0000]the Employee shall not render or perform services for any other entity or person either part-time or full-time or obtain any remuneration from other party[/color].”
Does this record actually mean that I cannot work part-time for other employers at all (even after duties or during week-end). I am APRC holder. So, no need working permission. I hope it should be not Employer’s business what I am doing after my duties!

Second item,
“The Employee shall, during the term of his or her employment, faithfully perform all of his or her employment duties. In the event that the Employee has received rebates, gifts or any other unwarranted payments from the Employer’s suppliers, customers, partners or any other entity having business relationship with the Employer without the Employer’s prior written consent, the Employer may terminate this Agreement without notice and in addition, [color=#FF0000]the Employee agrees unconditionally to pay to the Employer one million New Taiwan dollars as punitive damage[/color].”
Here I uderstand the basic point but I think the written punishment is too huge and not proportional to the possible gift price.

Could someone give me suggestion, is it worth to fight for removing/modifying the mentioned items or not?

Thank you in advance.

APRC and Open Work Permit are two different things. You need an OPW to work for someone else. You should have that already. Either way, you could ask to have that taken out, or you could simply ignore it, and do whatever you want anyway. That seems like SOP here. Just don’t flaunt your activities and nobody will say a word.

FWIW that punitive damage stuff is laughable. If you’re inclined to accepting bribes, I wouldn’t sign it.

Thanks.
Surely, I have OWP also. Actually, I would like to know the legal power of mentioned items rather than practical experience.
Also, I am not going to take bribes but if even given pen can put in a danger I would be very careful.

There are some threads about non-competition clauses, but I think at some point a sticky would be a good idea…

forumosa.com/taiwan/viewtopi … 70&t=77081
forumosa.com/taiwan/viewtopi … 0&t=140637
forumosa.com/taiwan/viewtopi … 70&t=87713

The Ministry of Labor has a handbook about this topic. It’s difficult to find on their website (you can easily find a page that mentions it, but the actual PDF is hidden away in a deep, dark corner), but somewhere on the web you should be able to find “簽訂競業禁止參考手冊”. It explains that unfair contract clauses are invalid on account of the Civil Code.

Civil Code, Article 247-1:

[quote]If a contract has been constituted according to the provisions which were prepared by one of the parties for contracts of the same kind, the agreements which include the following agreements and are obviously unfair under that circumstance are void.
(1) To release or to reduce the responsibility of the party who prepared the entries of the contract.
(2) To increase the responsibility of the other party.
b To make the other party waive his right or to restrict the exercise of his right.[/b]
(4) Other matters gravely disadvantageous to the other party.[/quote]
You can also refer to Article 17:

[quote]No one shall be permitted to waive his liberty.
Any limitation to liberty shall not be against public policy or morals.
[/quote]

Although the conditions making a non-competition clause fair or unfair are not formally codified in law, the Ministry’s predecessor the Council of Labor Affairs released a list of fairness criteria in 2000, and in practice the courts follow this list. (If anyone has an example of a court not following it, please share.)

A good summary in English is available at winklerpartners.com/?p=995

My favorite is #4:

Someone in one of the above threads said the compensation doesn’t actually have to be declared (in advance) to be part of the non-competition agreement. I think it would have to be extraordinary compensation for that kind of argument to work; the handbook gives a specific example of bonuses not being accepted as sufficient compensation.

I don’t know if accepting a pen would qualify as bribery, but I doubt the company could get $1m out of you for that, assuming it’s not a diamond-studded pen with a built-in death ray… :no-no:

Bear in mind that firing an employee for breach of contract is only legal if it’s a “serious” violation (Labor Standards Act, Article 12) or if the employee is “clearly not able to perform satisfactorily the duties required of the position held” (Article 11).

[quote]No employer shall, even by advance notice to a worker, terminate a labor contract unless one of the following situation arises:

  1. Where the employers’ businesses are suspended, or has been transferred.
  2. Where the employers’ businesses suffers an operating losses, or business contractions.
  3. Where force majeure necessitates the suspension of business for more than one month.
  4. Where the change of the nature of business necessitates the reduction of workforce and the terminated employees can not be reassigned to other suitable positions.
    5. A particular worker is clearly not able to perform satisfactorily the duties required of the position held.

    In any of the following situations, an employer may terminate a labor contract without advance notice:
  5. Where a worker misrepresents any fact at the time of signing of a labor contract in a manner which might mislead his/ her employer and thus caused him/her to sustain damage therefrom.
  6. Where a worker commits a violent act against or grossly insults the employer, his /her family member or agent of the employer, or a fellow worker.
  7. Where a worker has been sentenced to temporary imprisonment in a final and conclusive judgment, and is not granted a suspended sentence or permitted to commute the sentence to payment of a fine.
    4. Where a worker is in serious breach of the labor contract or in serious violation of work rules.
    5. Where a worker deliberately damages or abuses any machinery, tool, raw materials, product or other property of the employer or deliberately discloses any technical or confidential information of the employer thereby causing damage to the employer.
  8. Where a worker is, without good cause, absent from work for three consecutive days, or for a total six days in any month.
    Where an employer desires to terminate a labor contract pursuant to Subparagraphs 1 and 2, Subparagraphs 4 to 6 of the preceding paragraph, he/she shall do so within thirty days from the date he/she becomes aware of the particular situation.[/quote]

I hope my current job fires me.

[quote=“Alex1000”]Thanks.
Surely, I have OWP also. Actually, I would like to know the legal power of mentioned items rather than practical experience.
Also, I am not going to take bribes but if even given pen can put in a danger I would be very careful.[/quote]

Don’t sign anything yet and show them the information yyy shared.

Thank to all of you! especially to yyy for supported information and law articles!!!

After some research I close to think that both items in my contract could be successfully void in court in some case in the future.

In fact, I think my case is a little different from non-competition clauses. Because I am going to legally work part-time in very different area from the main employer. So, should be no interests conflict.

I just want to add a recent development. The handbook mentioned earlier doesn’t give direct advice about the amount of compensation needed to fulfill condition #4, though it does bring up British custom (full salary during the non-competition period) and German law (50% of salary). Recently, the Ministry of Labor released new guidelines that mostly restate the old guidelines but now specify minimum compensation, following the German example.

bola.gov.taipei/ct.asp?xitem=126 … &mp=116003

The second pdf is the important one.

(二)離職後競業禁止之補償措施,應具合理性:
1.雇主對於勞工離職後因遵守離職後競業禁止條款約定,可能遭受工作上之不利益,應給予合理之補償。於離職後競業禁止期間內, 每月補償金額,不得低於勞工離職時月平均工資百分之五十,並 應約定一次預為給付或按月給付,以維持勞工離職後競業禁止期間之生活。未約定補償措施者,離職後競業禁止條款無效。
2.雇主於勞工在職期間所給予之一切給付,不得作為或取代前目之補償。

My translation:

(2) Post-employment non-competition compensation measures should be reasonable:

  1. Because following a post-employment non-competition agreement may be harmful to the worker, the employer should give reasonable compensation. During the post-employment non-competition period, the monthly compensation shall not be lower than 50% of the worker’s average monthly wage at the time of leaving employment, and it should be agreed that the payment shall be a lump sum or monthly, to protect the worker’s livelihood during the post-employment non-competition period. In the event that no compensation is agreed upon, the post-employment non-competition clause is void.
  2. No payments made by the employer to the employee during the employment period shall be used as or replace the compensation mentioned in the previous item.

This isn’t codified in law yet, but it’s an official government opinion. The “average wage” is presumably meant to be the same as the one defined in Articles 2 and 17 of the Labor Standards Act, i.e. the average over the previous six months.

Citation: 104年10月5日勞動部勞動關2字第1040127651號函

I’m astonished that the administrators of this site have not made you a moderator yet. Your posts are highly informative, impeccably detailed and extremely helpful.

But, hey, what do I know? :neutral:

I think the no part time or full time clause is pretty standard to put into contracts. For one thing employers like the scheduling flexibility and not having to compete with other schedules. We have this in our contract but it instead says that permission must be granted before taking on additional work. A request was denied once because there were plans to add a new class in a few months.

In addition to that employers might not want their employees working illegally elsewhere (like a kindy) and have to deal with an employee getting deported because of their side job. Obviously the OP has an APRC and OWP so that isn’t a concern and I am guessing that the employer wouldn’t have had a problem with a part time job that fell outside of any possible future schedules. It would be interesting to have the OP report back since it has been several months.

[quote=“jimipresley”]I’m astonished that the administrators of this site have not made you a moderator yet. Your posts are highly informative, impeccably detailed and extremely helpful.

But, hey, what do I know? :neutral:[/quote]
Thanks Jimi, I’m so flattered! :blush: Do you think “Mosa Mod” qualifies as a white collar job with 48k per month and all that? :ponder: As long as they don’t assign me to the political forum… :runaway: